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On Behalf of | Feb 5, 2018 | Uncategorized |

Applying pressure to an elderly person to get him or her to change a will in your favor – whether the actor applying the pressure is a family member, friend, service worker, stranger, or otherwise – is sadly not just the stuff of soap operas and tabloids. It happens quite frequently, with elderly and/or ill individuals at the end of their lives being common targets of what is called undue influence. A person does have the right to distribute their property as they see fit via a will, but when a person exercises undue influence to pressure another person to change his or her will, the beneficiaries who would have otherwise received property under a previous version of the will can challenge the will in Florida probate court.

Defining Undue Influence in Florida Probate

Again, it is the case that a person in Florida has a right to distribute his or her assets as they please (subject to a surviving spouse being able to claim an elective share in some cases), but a will (or portions of a will) procured by undue influence will be invalid.

Undue influence is defined in Florida as a person exercising control over the mind of the testator (the person making the will) so as to overcome the testator’s free agency and free will, resulting in provisions of a will that would not have been present in the will had the person not exercised that control.

In addition to undue influence, a probate court may invalidate a will or portions of a will if they were procured as a result of fraud, duress, or mistake.

Raising an Undue Influence Argument In Florida Probate Court

An undue influence argument cannot be raised in court until after the testator dies. The first step will be for another party to attempt to enter the disputed will as the valid will in the probate proceedings.

At that point, another party who believes the will is the product of undue influence will raise this argument to the court, and that person (via his or her probate attorney) will have the burden of persuading the court that it is the product of undue influence and should thus be invalidated in whole or in part.

A court will presume that a will or portions of it is the product of undue influence if a person receiving a gift via the will:

  • Was a substantial beneficiary of the will
  • Had a confidential relationship with the testator (i.e. was the testator’s attorney), and
  • Actively participated in the procuring of the will (i.e. assisted the testator in drafting the will)

Note that those factors are not required to prove an undue influence argument, and there may be any number of circumstances in which a court could find undue influence and thus invalidate the will or portions of it. Speak to a Florida probate attorney for further guidance on your situation.

Contact Ryan Mynard Today About Your Probate Needs in Florida

If you are currently facing a probate-related issue or would like to discuss ways in which to avoid probate through the estate planning process, contact Florida estate planning attorney Ryan Mynard at +1-850-683-3940 today to get started.

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